114 Ky. 103 | Ky. Ct. App. | 1902
■Opinion of the court by
— Reversing.
The appellant, Mary Petrie, was going to ber borne in Elkton, Ky., after night, in company with her husband’s sister, Mary Belle. They were followed by two men, named Blye and Crouch; the latter proposing sexual intercourse, and making an exposure off his person. They hurried on, and met doe Petrie, the husband of Mary. She told him of the conduct of the men, and he immediately went back up the street in the direction of them. When he overtook them, he asked Crouch what lie had insulted his wife for. Crouch said, “Damn your wife, and you, too.” Petrie then struck him. A sniffle followed, and Crouch fell. Crouch and Blye were while men. Petrie was a negro. The difficulty c-ame up just in front of a billiard saloon. Blye was cutting at Petrie! with liis knife. Some one called out to Petrie to run, which he did. Appellee Cartwright, who was the city marshal, was in sight a' féw yards off, and, seeing Crouch fall, as Petrie ran past called to him to halt, and, when he did not stop, -fired his pistol in the ground. He then fired a second time, taking aim at Petrie, and killing him. Petrie’s eloches were cut behind. His clothing was cut through and through, and his skin scraped. These cuts were made by Blye while he was scuffling with Crouch. Although the officer called to Petrie twice- to stop, he does not appear to have heard him. Neither recognized the
We think it evident from the proof that Petrie’s flight was not to avoid arrest, but only to escape w’hat he conceived to be an impending danger. We think it also clear-that the fall of Blye was due rather to his being very -drunk than to any other cause, for he seems to have fallen in the scuffle, and not when he was struck. The jury were warranted in concluding from all the evidence that Petrie had in fact committed no felony. The question, therefore, pre
/We have been unable to find any common-law authority1 justifying an officer in killing a person sought to be arrested; who lied, from him, where the officer! acted upon suspicion, and no felony had in fact been committed. The-common-law rule allowing an officer to kill a felon in order-to arrest him rests upon the idea that felons ought not to-be at large, and that the life of a felon has been forfeited-r for felonies at common law were punishable with death. But where no felony has been committed the reason of the rule does not apply, and it seems to ns that the sacredness of human life and the danger of abuse do not permit an extension of the common-law rule to cases of suspected felonies. To do so would be to bring many cases of misdemeanor within the rule, for in a large per eem. of those cases the officer could show that he had reasons to suspect the commission of a felony, and it would be left entirely with him to say whether he was proceeding against the defendant for a misdemeanor or for a felony. The notion that a peace officer may in all cases shoof one who flees from him when about to be arrested is unfounded. Officers have no such power, except in cases- of felony, and there as a last resort, after all other means have failed. It is never allowed where the offense is only a misdemeanor, and where there is only a suspicion of felony the officer is net warranted in treating Ihe fugitive as a felon. If he does ibis, ho does so at his peril, and is liable if it turns, out that he is mistaken. He may lawfully -arrest upon
The court should have allowed the evidence as to what took place between Blye and Grouch and the two women; also as to what took place' between them and Joe Petrie; as they were only a short distance from home when the transaction occurred, and before they got home they heard the shots. The whole thing was so closely connected that it should all be regarded as one transaction, and the evidence referred to was competent as res gestae.
Judgment reversed, and cause remanded for a hew trial.